TAM v MOG, 2021 ABQB 351

Court of Queen’s Bench of Alberta Citation: TAM v MOG, 2021 ABQB 351 Date: 20210504 Docket: FL03 56523 Registry: Edmonton Between: TAM Applicant - and - MOG and AV Respondents Restriction on Publication Identification Ban – See the Family Law Act ,

section 100 . By Court Order, no person shall publish or broadcast information that may identify the Child involved in this proceeding. NOTE: Identifying information has been removed from this judgment to comply with the ban so that the decision may be published. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice K.S. Feth

_______________________________________________________ [ 1 ] Determining a child’s parentage has been simplified by science, in particular through DNA markers. Unfortunately, the litigation process for determining parentage sometimes suffers from the absence of the same simplicity. [ 2 ] TAM is the birth mother of a 14-year-old son (the Child). She applies for a declaration that MOG is the biological father.

AV is identified as the Child’s father on the Registration of Birth and stood in that position for much of the Child’s young life. [ 3 ] As part of her application, TAM asks the Court for permission to obtain a DNA test from MOG with the results to be provided by a certain date. If the DNA test results show that MOG is the biological father, she requests confirmation of his parentage.

If the DNA test results are not provided by that date because MOG fails to provide a genetic sample, she asks the Court to draw an adverse inference against MOG and to automatically declare that MOG is the biological father. [ 4 ] MOG acknowledges sexual activity with TAM around the time of conception, but resists the DNA test. He contends AV is the presumptive biological father and the presumption has not been rebutted. In particular, he complains that TAM’s evidence is unreliable, contradictory and untruthful.

Further, he asserts that AV has not been properly served with notice of the parentage application and that the Court must first consider whether the Child should also be formally served before any decision is made. [ 5 ] TAM has an outstanding child support proceeding against MOG in the Provincial Court of Alberta. A declaration of parentage is a precursor to determining that application. [ 6 ] For the reasons to follow, permission to obtain a DNA test from MOG is granted. Any declaration of parentage must await the outcome of the DNA testing.

However, procedural directions are provided at the end of these Reasons for Decision to streamline the court proceedings. Background [ 7 ] TAM and MOG had a brief relationship in 2006. MOG admits that a “sexual encounter” occurred approximately 8 to 9 months before the Child was born and does not deny having unprotected sexual intercourse with TAM. [ 8 ] Around that time, TAM was in a relationship with AV, but they were on a break. Their relationship resumed sometime after the sexual encounter between TAM and MOG.

According to MOG, TAM subsequently told him that she was pregnant, but was unsure about the identity of the father. Shortly after the Child’s birth, TAM informed him that a doctor confirmed AV was the father “given relevant dates.” [ 9 ] MOG was told by TAM that he would not be involved with the Child so he went on with his life. [ 10 ] AV signed the Registration of Birth confirming that he was the “natural father” of the Child. The birth certificate names AV as one of the Child’s parents. [ 11 ] TAM and AV lived together for several years and had other children.

They married in 2010, but later divorced. [ 12 ] In September 2008, during a breakdown in their relationship, an application was filed in this Court in TAM’s name seeking child support from AV. The claim was prepared at the instance of a Director under the Income and Employment Supports Act , SA 2003, c I-0.5 , presumably because TAM was in receipt of government support services. TAM denies that she prepared the contents of the claim. The application stated: a. AV is a parent of the Child; b. There is no other possible father of the Child; c.

TAM did not have sexual relations with anyone else within three months of or during the month of conception; d. AV stated in writing that he was the father of the Child. [ 13 ] In 2014, TAM filed for divorce from AV and described the Child as one of the “children of the marriage.” [ 14 ] By late 2017, TAM was contacting MOG’s extended family in an effort to locate him. She told one of MOG’s parents that she only wanted to determine whether MOG was the Child’s father and that she was not looking for money. MOG’s family was uncooperative. One family member reportedly told her that MOG was deceased.

In April 2018, TAM filed an application in the Provincial Court of Alberta claiming child support payable by MOG. [ 15 ] In that child support proceeding, TAM did not mention AV and sought support from MOG alone. AV has been incarcerated from time to time and has not paid child support for several years. [ 16 ] TAM’s Affidavit in the child support proceeding stated that the Child “lives with her all the time.” In fact, the Child had been living with TAM’s mother for the preceding two months.

TAM later explained in Questioning that her comment meant she was responsible for the Child; she paid her own mother for a period of time to care for all of her children while searching for or engaged in out-of-town employment. [ 17 ] The Provincial Court proceeding was adjourned so that TAM could pursue a declaration of parentage in this Court.

[ 18 ] In October 2018, this Court directed TAM to amend her pleadings in the parentage proceeding to add AV as a party and to serve him with the amended pleadings. TAM served him later that month. [ 19 ] In November 2018, AV provided a Reply Statement – Parentage in which he denied being the Child’s biological father. TAM prepared the Reply and gave it to AV for his approval. According to TAM, he signed the Reply, although it is not dated, sworn or commissioned. [ 20 ] At the time, AV was in custody at the Edmonton Remand Centre.

The signature was witnessed by an individual from Allied Investigation Services, Brian Butler. No Affidavit of Service has been provided, but TAM received an email from Mr. Butler who confirmed witnessing AV sign the Reply. Mr. Butler’s email states that because AV was in custody at the Remand Centre, “it was pretty much impossible to find a way to commission his signature.” [ 21 ] In January 2021, MOG’s lawyer received a copy of a DNA testing report from TAM’s counsel that concluded AV was not the biological father of the Child.

However, the report’s author noted that the test subject, ostensibly AV, did not present with photo identification, so the source of the genetic sample could not be confirmed. [ 22 ] Both TAM and AV have a history of criminal activity. TAM acknowledges a conviction for “uttering a forged document.” [ 23 ] MOG contends that TAM’s evidence cannot be believed and must be wholly disregarded. [ 24 ] The parties have spent more than 2 ½ years in litigation about the parentage issue and the request for a DNA test. Numerous demands have been made for disclosure of information.

Each person blames the other for the complexity of the proceeding and the delay. Process Issues [ 25 ] MOG raises a concern that the Child and AV have not been properly served with notice of the present application. [ 26 ]

Section 11 of the Family Law Act , SA 2003, c F-4.5 ( FLA ) requires that the following persons, among others, “be served with notice of an application for a declaration of parentage,” unless the Court otherwise directs: a. The person claimed to be the child, if the child is 16 years of age or older; b. Each guardian of the person claimed to be the child. [ 27 ] Section 11(2) states: “Before making an order ... the court must consider whether it is appropriate for a child who has not been served under this

section to have notice of the application.”

a) Notice for the Child [ 28 ] TAM deposes that the Child knows AV is not his biological father and has been asking questions about the identity of his natural father since he was 10 years old. She says that the Child has been given a copy of the declaration of parentage application. [ 29 ] MOG contends that since TAM’s evidence is unreliable, the Court ought not to determine this application until addressing whether the Child should be provided with formal notice of the application.

No evidence is offered to suggest that TAM has misrepresented the information from the Child or that she has lied about providing him with a copy of the application. She was questioned for discovery and nothing before me suggests her information on these points was challenged or impugned. [ 30 ] A reason for formally serving the Child with notice of the application is not given. No evidence is proffered from which the Court might infer that the Child does not want to know or should not know whether MOG is his biological father. [ 31 ] TAM has sole custody and primary parenting of the Child.

No explanation is provided for how service of the parentage application on the Child serves his best interests. If the suggestion is that a 14-year-old child should be consulted about this application so that he may challenge his mother’s decision about his best interests, no justification is offered for that proposition. Nothing suggests TAM is failing to act in his best interests or that his interests would be better served by not knowing. [ 32 ] This application prefaces a child support application.

Delaying the determination of the parentage issue risks delaying a decision about who is responsible for child support. Postponement does not serve the Child’s best interests. The overall pace of this litigation is already too slow. [ 33 ] Having considered the circumstances of this Child, I conclude that providing formal notice of the application on him is not appropriate.

b) Notice for AV [ 34 ] TAM deposes that she served AV with her amended application for a declaration of parentage. His Reply states that he denies being the Child’s parent because TAM was separated from him at the time of conception. He also references a DNA test of the Child and another one of his children from which he implies the two children do not have a common biological father. His Reply also asserts that the Child does not look like his other children. [ 35 ] TAM states that AV has not been actively involved in the Child’s life since 2011.

[ 36 ] Nothing in the Reply suggests AV wants to participate in the parentage application or the request for permission to obtain a DNA test from MOG. [ 37 ] MOG contends the Reply might not be genuine and that I should distrust the contents. However, Mr. Butler’s email provides some confirmation that AV approved of the contents. The suggestion that TAM forged the contents is merely conjecture. [ 38 ] I hereby dispense with service on AV of that part of the application seeking permission to obtain a DNA test from MOG.

As I will explain below, the application for a declaration of parentage will come back before the Court after the time period for obtaining a DNA test has ended. AV shall be provided with notice of that part of the application. If he has any concerns about the DNA testing, he may raise them at that time. Establishing Parentage [ 39 ]

Section 9 of the FLA allows certain individuals to apply for a declaration of parentage if “there is a dispute or any uncertainty as to whether a person is or is not a parent of a child.” The words “a dispute or any uncertainty ” suggest a low standard for commencing an application. [ 40 ]

Section 8 of the FLA describes circumstances in which a male person is presumed to be the biological father of a child and recognized in law as a parent of the child, unless the contrary is proven on a balance of probabilities. Those circumstances include: a. He married the birth mother after the child’s birth and has acknowledged that he is the father; b. He is registered as the parent of the child at the joint request of himself and the birth mother under the Vital Statistics Act , SA 2007, c V-4.1 ; c.

He has been found by a court of competent jurisdiction in Canada to be the father of the child for any purpose. [ 41 ] The presumption applies to AV because he married TAM after the Child’s birth and acknowledged that he is the father, registered as the parent of the Child under the Vital Statistics Act at the joint request of himself and TAM, and was impliedly found to be a parent of the Child by the Provincial Court of Alberta when a Consent Parenting Order was granted in July 2018 and by this Court when the Divorce Judgment was granted in August 2019. [ 42 ] MOG suggests that TAM must rebut the presumption on the balance of probabilities before permission to obtain a DNA test is given.

I disagree. [ 43 ] DNA testing is authorized by s 15 of the FLA , which states in material part: 15(1) On the request of a party to an application ... the court may make an order granting permission to obtain blood tests, DNA tests or any other tests that the court considers appropriate from any person named in the order and to submit the results in evidence.

(2) An order under subsection (1) may be made subject to any terms and conditions the court considers appropriate.

(3) No test shall be performed on a person without the person’s consent. ...

(5) If a person named in an order under subsection (1) ... refuses to consent to a test referred to in the order, the court may draw any inference it considers appropriate on behalf of the child without prejudice to the child in future proceedings. [ 44 ] Nothing in s 15 states that a presumption of parentage must be rebutted before DNA testing is permitted. [ 45 ] A “dispute” or “any uncertainty” must exist before permission is given to obtain a blood test, DNA test or other appropriate test.

However, the applicant need not first prove that someone other than the presumed father is the father of the child as that would have the practical effect of requiring the applicant to meet the ultimate burden on the parentage inquiry before any testing is obtained.

In the result, the Court would be deprived of the best evidence. [ 46 ] In DH v DW , [1992] OJ No 1737 at para 8 (WL) (Ont Gen Div) [ DH) ], Charron J, as she then was, reached the same conclusion where a mother argued that the applicant should not be allowed to obtain a blood test without first successfully rebutting the presumption of paternity: While there must first be an issue as to parentage in a civil proceeding before leave to obtain blood tests can be granted, I am unable to agree with my brother judge in the case of F.G. that there can be no issue before the Court unless the applicant can first prove on a balance of probabilities that someone other than the presumed father is the father of the child.

In many instances - such as this case - this would have the practical effect of requiring the applicant to meet the ultimate burden on the issue of parentage before leave to obtain evidence in support of his case could be obtained. If the legislator intended the courts to take such a restrictive approach, it could easily have so stated in s. 10. [ 47 ] That approach has received approval from the British Columbia Court of Appeal: RJP v NLW , 2013 BCCA 242 at paras 20- 22 , leave to appeal refused, 2013 CarswellBC 3505 (SCC) .

See also: FXB v MSB , 2007 YKSC 6 at para 23 . [ 48 ] I conclude that the presumption of parentage need not be rebutted on a balance of probabilities before permission for a DNA test is obtained.

[ 49 ] The evidentiary threshold for receiving permission to obtain a DNA test is low. The Alberta Court of Appeal in JCC v NCC , 2018 ABCA 115 at para 42 [ JCC ], citing the analysis in DH , considered the following factors: a. The strength of the applicant’s case; b. The bona fides of the applicant and whether there are ulterior motives; c. The best interests of the child; and d.

The general interests of justice. [ 50 ] These factors are not necessarily exhaustive. [ 51 ] The Court of Appeal noted in JCC at para 47 that DNA testing is “non-intrusive” and re-affirmed the sentiments expressed in FJN v JK , 2015 ABCA 353 at para 19 : Previously, paternity testing involved the use of various types of blood tests. Indeed, even the first method of testing paternity using DNA involved the drawing of blood. The science has advanced significantly, and modern testing includes non-intrusive methods such as taking a saliva sample with a buccal swab.

It is not in the best interests of children to have decisions respecting paternity delayed, nor is it appropriate for extensive judicial resources to be expended on issues that can be definitively resolved by medical testing . [ emphasis added ] [ 52 ] Accordingly, putative fathers should not respond to DNA testing requests by playing a cat and mouse game with process and proof.

Timely access to the most reliable evidence serves the best interests of the child and advances the administration of justice. [ 53 ] In JCC , at para 40 , the Court of Appeal also clarified that an application for permission to obtain a DNA test does not require evidence sworn on the basis of personal knowledge. Instead, the affidavit may be sworn on the basis of “information known to the person swearing the affidavit and that person’s belief”: Rule 13.18(1) (

b) of the Alberta Rules of Court , Alta Reg 124/2010 . [ 54 ] MOG submits that TAM’s evidence is untruthful and should be disregarded because she lacks credibility and the record contains some internal contradictions.

However, credibility cannot usually be assessed in a C hambers application on affidavit evidence , absent cross-examination on the affidavits or viva voce evidence: Leoppky v Meston , 2008 ABQB 45 at para 48 ; Klein v Wolbeck , 2016 ABQB 28 at para 23 [ Klein ]. [ 55 ] The Alberta Court of Appeal has suggested that judges hearing Chambers applications should be guided by Justice Karakatsanis’ direction in Hryniak v Mauldin , 2014 SCC 7 at paras 5 and 34 to favour proportionality and fair access to the affordable, timely, and just adjudication of claims.

The overarching question is whether a fair and just determination is appropriate on the record now, or whether the determination should be deferred to trial or to later proceedings augmented by additional evidence: Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta , 2015 ABCA 101 at paras 79 – 81 [ Sandhu ].

See also: R Floden Services Ltd v Solomon , 2015 ABQB 450 at para 20 [ R Floden ] and Klein at para 24 . [ 56 ] As well, Chambers judges have broad discretion to determine how much weight to assign to the affidavit evidence of the parties and enjoy some latitude for fact-finding, even in the face of conflicting affidavit evidence: Sandhu at para 83 ; Leis v Leis , 2014 ABCA 36 at para 45 ; Klein at para 25 .

For example, facts may be found where any conflicts on the evidence do not concern essential facts or where issues can be resolved on the basis of evidence that is not in dispute: Sandhu at para 81 ; R Floden at para 21 ; Klein at para 25 . [ 57 ] I am satisfied that the internal inconsistencies on essential facts have been adequately explained by TAM, including the 2008 child support application dismissing the possibility that someone other than AV is the father.

Moreover, the general concerns about credibility are insufficient to invite the wholesale rejection of her evidence. [ 58 ] I now turn to the relevant factors in considering the request for DNA testing. [ 59 ] First, the applicant has established that sexual intercourse occurred between herself and MOG around the time of conception. AV’s Reply explains that AV and TAM were separated at that time.

The Reply also addresses, although through hearsay, AV’s observations about the Child not looking like his other children. [ 60 ] MOG counters with historical evidence in which AV and TAM acknowledged that AV was the “natural father” and a “parent” to the Child. However, that evidence merely expresses beliefs they held or hoped were true at the time. The beliefs are far from definitive. [ 61 ] The child support claim prepared in 2008, containing acknowledgements about the Child’s parentage, is also unpersuasive. Nothing establishes that TAM prepared or approved of the contents.

She expressly denies preparing the application. [ 62 ] The Reply references DNA testing involving the Child and a sibling, but that testing is not in evidence and no details are provided. I attach no weight to it. [ 63 ] A DNA test report from 2019, which excluded AV as the Child’s biological father, offers strong evidence that the parentage is uncertain. While the analysis is not determinative since the source of the genetic sample was not confirmed by the laboratory, TAM’s understanding in her evidence is that AV undertook the testing.

The assertion that someone other than AV provided the sample is speculation. [ 64 ] Reliable evidence of sexual intercourse between TAM and MOG around the time of conception is before me. Shortly after conception, TAM told MOG that she was unsure about the identity of the father. Evidence supporting AV’s paternity is circumstantial,

or not adopted by TAM, and does not foreclose a real possibility that MOG is the biological father. Substantial uncertainty about paternity exists. [ 65 ] Second, no improper motive presents in the request for DNA testing. MOG complains that TAM was disingenuous in telling his family that she was not interested in money, but a desire to secure child support is not an improper purpose. The FLA contemplates using DNA testing to establish parentage for that purpose. [ 66 ] Third, the Child’s best interests are served by obtaining child support, which will be facilitated by clarifying paternity.

Knowledge about genetic history can also be relevant to one’s sense of personal identity and to future medical care. [ 67 ] Fourth, uncertainty about parentage should be resolved by the Court having access to the best possible evidence, which is DNA evidence. The general interests of justice are advanced by arriving at the truth and doing so with reasonable efficiency. [ 68 ] MOG argues that another relevant consideration is a risk to his personal safety if DNA testing is granted.

He submits that TAM, her current partner, and AV all have “significant criminal histories.” However, only limited information about criminal activity is offered. [ 69 ] MOG fails to explain why his participation in DNA testing will expose him to reprisals. TAM wants him to participate. AV does not suggest any opposition. MOG argues that AV is actually maintaining a relationship with the Child, but scant evidence is offered and TAM has provided a Response Affidavit rebutting the circumstantial premise on which MOG relies.

Even if a relationship of some sort exists, the contention that AV would retaliate against MOG for providing a DNA sample under court direction is pure conjecture. [ 70 ] MOG’s concern lacks any merit. I give no weight to it. [ 71 ] Having considered the relevant factors and whether DNA testing is appropriate, I grant permission for DNA testing to be conducted in accordance with s 15 of the FLA . Declaration of Parentage [ 72 ] TAM requests that an Order be granted in which MOG’s parentage of the Child will be declared automatically if either of the following circumstances arises: a.

The DNA test results show that MOG is the biological father; or b.

The DNA test results are not provided within a time limit prescribed by the Court (the implication being that MOG is then consciously choosing to withhold a genetic sample). [ 73 ] In the event of the second circumstance, the proposed form of Order requires the Court to draw an adverse inference and to make the parentage finding about MOG, without exception. [ 74 ] TAM’s request essentially asks the Court to make a factual finding without seeing the DNA test results or hearing from MOG about the results, or if he fails to supply a genetic sample within the prescribed time, drawing an adverse inference without giving him an opportunity to explain.

I am not prepared to make a factual determination on those terms. [ 75 ] First, the Court should review all the evidence before making a finding of fact. [ 76 ] Second, while DNA testing is highly persuasive, the parties should be given an opportunity to make submissions about the testing process, report and findings. The need for that opportunity is illustrated by the DNA test report concerning AV’s parentage, which indicates that the proper identification protocol for AV’s sample was not followed. [ 77 ] Third, an adverse inference for failing to submit a genetic sample should not be automatic.

Exceptional circumstances might prevent MOG from submitting a sample on time. The reasons for and consequences of any default should be considered by the Court before an adverse inference is made. [ 78 ] I recognize that TAM’s proposal seeks to streamline the process and minimize expense. However, as discussed below, other mechanisms can assist in achieving those objectives. Directions [ 79 ] The application materials do not identify the DNA testing service or the process to be followed.

If TAM and MOG cannot agree within 10 days on the service provider, they may contact me in writing to resolve the matter. [ 80 ] MOG is to provide his genetic sample within 30 days of these Reasons for Decision. If he refuses to consent to the test or fails to provide his genetic sample within the time limit, the Court may draw any inference it considers appropriate on behalf of the Child without prejudice to the Child in future proceedings. [ 81 ] TAM will bear the initial expense of the DNA testing.

If MOG is subsequently declared to be the Child’s biological father, TAM will recover the testing expense from MOG. [ 82 ] The DNA testing report will be provided to each of TAM, MOG and AV. [ 83 ] The application for a declaration of parentage is adjourned sine die , but returnable before me by Desk Application. If TAM

decides to abandon or discontinue her parentage application after receiving the DNA test results, she is to notify me in writing by June 30, 2021. [ 84 ] If TAM decides to proceed with her parentage application after receiving the DNA test results, she is to provide me with a copy of the DNA testing report, an Update Affidavit and written submissions by no later than June 30, 2021.

MOG and AV are to provide me with any Update Affidavit and written submissions by no later than July 16, 2021. [ 85 ] TAM may provide a short written reply by July 30, 2021. [ 86 ] TAM will serve AV with a copy of these Reasons for Decision and the DNA testing report, and file an Affidavit of Service confirming service on him. Service must be effected by June 23, 2021. [ 87 ] TAM has an outstanding child support application in the Provincial Court of Alberta. She may re-file the application in this Court, at her election, to be heard in conjunction with the parentage application.

Permission is granted to forego Family Docket Court so that the application is returnable before me. If TAM makes that election, she will be required to withdraw her child support application in the Provincial Court so as to comply with s 4 of the FLA . [ 88 ] Costs of this application may be addressed in the submissions for the parentage application. If the parentage application is abandoned or discontinued, either party may contact me in writing by July 16, 2021 to address costs.

Identification Ban [ 89 ] For the purpose of protecting the well-being of the Child, I exercise my discretion under s 100 of the FLA and prohibit the publication or broadcast of any information that could identify the Child. Desk Application submissions received on the 26 th day of April, 2021. Dated at the City of Edmonton, Alberta this 4 th day of May, 2021. K.S. Feth J.C.Q.B.A. Appearances: Jennifer Leung for the Applicant Maureen E. Murdoch for the Respondent, MOG No appearance for the Respondent, AV